Arch Coal wants summary judgment in mining case

Like lawyers representing environmentalists, attorneys for Arch Coal Inc. want a federal judge to issue summary judgment on two key issues in the mountaintop removal mining case. They just want the judge to rule the other way.

The conservancy argued that the buffer zone rule - which prohibits mining within 100 feet of streams - makes valley fills in perennial and intermittent streams illegal. Valley fills can still be built in much smaller, ephemeral streams, the group says.

"The buffer zone rule ... was never meant to be read in such a fashion," McLusky wrote in a brief filed Friday.

"Nothing in its language suggests that its requirements are to be applied myopically to particular stream segments, rather than to streams as a whole," he wrote.

"Indeed, the interpretations of water laws and surface mining laws proposed by the plaintiffs in support of their claims have been routinely rejected and, if accepted, would prohibit not only coal mining but a great number of other industrial and construction activities."

In his brief, McLusky also argued that valley fills do not have to comply with the approximate original contour, or AOC, reclamation standard.

McLusky noted that the U.S. Office of Surface Mining stated in a February report to Congress that valley fills are exempt from AOC requirements.

Also Friday, the United Mine Workers filed court papers agreeing with Arch Coal's stance on the summary judgment issues.

UMW lawyer Jim Haviland also argued, however, that many of the issues in the case - especially the balancing of harms - remain "sharply disputed and [are] not an appropriate subject for summary judgment."

DEP lawyers did not file a response to the environmentalists' summary judgment motion.

Agency lawyer Russ Hunter said DEP's new outside attorneys, Ben Bailey and Brian Glasser, needed more time and would not file a response until Tuesday.